478 F.Supp.3d 518
D.N.J.2020Background
- Two related wrongful-death / medical-malpractice suits filed in New Jersey state court by residents' estates alleging nursing-home failures to prevent COVID-19 infections and deaths at Andover Subacute Rehabilitation Centers I & II.
- Plaintiffs allege failures to provide PPE, monitor visitors/staff/residents, and implement infection-control measures; multiple deaths are blamed on those alleged lapses.
- Defendants removed to federal court relying primarily on the PREP Act (42 U.S.C. § 247d-6d) — arguing immunity/complete preemption for countermeasure-related claims — and alternatively on the federal-officer removal statute, 28 U.S.C. § 1442(a)(1).
- Plaintiffs moved to remand; Defendants opposed, citing PREP Act declarations expanding “covered countermeasures” (including respiratory protective devices) and emphasizing federal regulation/Medicare links.
- The district court held that the PREP Act does not completely preempt ordinary state-law negligence/malpractice claims here and that §1442 removal failed because defendants were not shown to be acting under direct federal orders; the case was remanded to state court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PREP Act completely preempts state-law negligence claims and therefore supports removal under §1441 | PREP Act immunity is limited to claims tied to administration/distribution/use of covered countermeasures; ordinary negligence claims survive and remain in state court | PREP Act immunity and declarations sweep broadly to cover PPE and pandemic-response conduct, so claims are federal and removable | PREP Act does not completely preempt these state-law negligence/malpractice claims; removal under §1441 was improper |
| Whether PREP Act creates an exclusive federal forum for these claims | Plaintiffs: PREP Act’s exclusive-federal-forum provision applies only to suits brought under subsection (d), not ordinary state-law claims | Defendants: PREP Act (as amended) and its preemption language warrant federal jurisdiction | Court: PREP Act lacks a general exclusive-forum provision for ordinary state-law negligence suits; Congress knows how to provide exclusive federal forum when intended |
| Whether defendants are "acting under" a federal officer for §1442 removal | Plaintiffs: Compliance with federal regulation/receipt of Medicare funds is insufficient to show acting under a federal officer | Defendants: Heavy federal regulation, Medicare/Medicaid funding, and adherence to federal COVID guidelines make them federal actors entitled to removal | Court: Defendants failed to show they acted under direct federal orders or performed functions the federal government would have had to perform; §1442 removal fails |
| Whether alleged failures that relate to infection-control measures are "administration" or "use" of covered countermeasures under PREP Act | Plaintiffs: Many alleged failures (e.g., social distancing, visitor control, general nursing care) are not covered countermeasures and fall outside PREP Act immunity | Defendants: Allocation/use/distribution of PPE and infection-control decisions are linked to covered countermeasures and fall within PREP Act protections | Court: PREP Act protects specific administration/distribution/use of covered countermeasures but does not extend to all claims about substandard care or failures to implement non-countermeasure practices; applicability requires fact-specific analysis |
Key Cases Cited
- Pullman Co. v. Jenkins, 305 U.S. 534 (well-pleaded complaint rule governs removals)
- Caterpillar Inc. v. Williams, 482 U.S. 386 (federal-question jurisdiction follows well-pleaded complaint rule)
- Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58 (complete preemption converts state claims into federal ones)
- Watson v. Philip Morris Cos., 551 U.S. 142 (private compliance with federal regulation alone does not establish acting-under federal officer for §1442)
- Willingham v. Morgan, 395 U.S. 402 (private persons may remove when acting at direction of federal officer)
- In re Commonwealth’s Motion to Appoint Counsel Against or Directed to Def. Ass’n of Phila., 790 F.3d 457 (colorable federal defense suffices for §1442 removal)
- Boyer v. Snap-On Tools Corp., 913 F.2d 108 (removal under §1441 construed strictly)
- Sun Buick, Inc. v. Saab Cars USA, Inc., 26 F.3d 1259 (§1442 construed broadly but with limits)
- Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (example of federal-law preemption transforming state claims)